TEACHER TERMINATION IN CALIFORNIA - Brentwood 2013 Final by BayAreaNewsGroup

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									BRENTWOOD UNION SCHOOL DISTICT
        January 23, 2013

  PRESENTED BY: LAURIE JUENGERT
            GCR, LLP
                                  ,
           INTRODUCTION
“Apparently the [Education] code as a whole is a
crazy-quilt product of well-meaning legislative
attempts to accommodate the divergent views of
teachers, school boards, parents and the public. To
one looking for the answer in many circumstances, the
result is like trying to peer through opaque glass.”
                    Justice Mosk
                    California Supreme Court Justice
                 Taylor v. Board of Trustees 1984
               INTRODUCTION
Teacher discipline and termination is highly
regulated by the Education Code.

Teachers earn tenure by serving two years in a
school district.

Tenure is a powerful protection.

See Education Code sections 44932-44946.
        GROUNDS FOR
   DISCIPLINE/TERMINATION
Education Code section 44932:

   Immoral Conduct
   Unprofessional Conduct
   Dishonesty
   Unsatisfactory Performance
   Evident unfitness for service
      GROUNDS FOR
 DISCIPLINE/TERMINATION
Physical or mental condition unfitting him or her
to instruct or associate with children

Persistent violation of or refusal to obey the school
laws of the state or reasonable regulations
prescribed for the government of the public schools
by the State Board of Education or by the governing
board of the school

Conviction of a felony or of any crime involving
moral turpitude
          GROUNDS FOR
     DISCIPLINE/TERMINATION
Alcoholism or other drug abuse which makes the
employee unfit to instruct or associate with
children.
         GROUNDS FOR
    DISCIPLINE/TERMINATION
Two grounds require prior notice and an
opportunity to improve:

  UNPROFESSIONAL CONDUCT
  UNSATISFACTORY PERFORMANCE



  Education Code section 44938
        GROUNDS FOR
   DISCIPLINE/TERMINATION
Most common grounds for termination:


  Unprofessional Conduct
  Unsatisfactory Performance
          GROUNDS FOR
     DISCIPLINE/TERMINATION
Example: A 4th grade teacher calls certain students
“stupid” and yells at students frequently. The parents of
one of the children contacts the Principal and complains
that their child is being called “stupid.” The student was
reluctant to tell his parent because the teacher is very nasty
and he is afraid she will single him out and embarrass him
in front of the class.

Assuming these facts are accurate what should the
Principal do? This is the first time the Principal has heard
about these issues.
  PROGRESSIVE DISCIPLINE
Steps of Progressive Discipline:

    Verbal warning
    Written warning
    Letter of Reprimand
    Suspension (Education Code)
    Termination (Education Code)
   PROGRESSIVE DISCIPLINE
If the misconduct endangers the safety of students it’s
acceptable to skip steps and go to a more serious
consequence, i.e.:

  Notice of Unprofessional Conduct
 NOTICE OF UNPROFESSIONAL
         CONDUCT
The Notice is to warn the employee that he/she may be
terminated if this conduct continues.
The Notice is the last step before termination.
If the employee improves, i.e. the Notice puts a stop to
the behavior, the employee can not be terminated
However, if the employee continues to engage in
serious misconduct of a similar nature the District has
grounds to move for termination.
 NOTICE OF UNPROFESSIONAL
         CONDUCT
INCIDENTS:
  1. High School P.E. teacher puts his arm against
  student’s throat and student nearly loses consciousness
  2. Follows male student into restroom and shoves him
  up against the wall.
  3. Fourteen year old student is subjected to Crowl’s
  “birthday spankings,” i.e. hit with a paddle to the point
  that she was bruised and unable to sit down the next
  day.

Crowl v. Commission on Professional Competence (1990) 225 Cal.App.3d
334
 NOTICE OF UNPROFESSIONAL
         CONDUCT
The teacher wrote an apology letter to the Principal.
The District served the teacher with a Notice of
Unprofessional Conduct and then filed for suspension
under the same Education Code provisions that exist
for termination.
The Court overturned Crowl’s suspension stating: the
purpose of Education Code section 44938 (requiring
the Notice of Unprofessional Conduct) must cite the
specific incidents that occurred and furnish the
employee an opportunity to correct his or her faults
and to overcome the grounds for such a charge.
NOTICE OF UNPROFESSIONAL
        CONDUCT
               • No grounds for
   Employee      termination
   Improves


   Employee • District may start
  Repeats the termination
              proceedings
   Conduct
       CRIMINAL MATTERS
Any employee who is convicted of:

  Sex offenses (Education Section 44010)
  Drug offenses (Education Section 44011)
  Serious and Violent Felonies (Education Code section
  44830.1)

May not continue to work in school districts.
       CRIMINAL MATTERS
Serious and Violent felonies include:
  Murder or manslaughter
  Rape
  Assault with a deadly weapon
  Arson
  Kidnapping
  Exploding a bomb
  Continuous sexual abuse of a child
       CRIMINAL MATTERS
Crimes Not Covered:

  Serious and/or Violent felony charges pled down
  to a misdemeanor and other misdemeanor
  offenses

    Examples: Assault and battery, theft,
    disorderly conduct, driving under the
    influence, and child abuse.
  CHILD ABUSE REPORTING
Principals, teachers, and classroom aides are all
mandatory reporters.
Anyone with a reasonable suspicion that child abuse
has occurred must report.
A verbal report must be made as soon as possible.
A written report must be filed with Child Protective
Services within 36 hours.


  Penal Code Sections 11165-11174.3
  CHILD ABUSE REPORTING
Ninety nine percent (99%) of the time CPS will only
handle abuse cases involving allegations against family
members
Cases involving alleged abuse by an employee are
referred back to the employer to use the disciplinary
process.
Therefore employees who use physical force with a
child must be disciplined by the school district.
DISCIPLINARY ACTION FOR CHILD
            ABUSE
      POSSIBLE GROUNDS FOR DISCIPLINE:

Unprofessional Conduct
Persistent Violation of Rules
Evident Unfitness for Service


Education Code sections 44932, subdivision (a), (1), (5) and (7)
DISCIPLINARY ACTION FOR CHILD
            ABUSE
Evident Unfitness for Service: Requires a showing
that the teacher has a defect if temperament that
manifests itself as unprofessional conduct but that is
not susceptible to remediation.
  Example: A teacher who engages in conduct
  that is rude, sarcastic and degrading to
  colleagues, students and supervisors.
    Woodland Joint Unified School Dist. V. Panel on Professional
  Competence (1992) 2 Cal.App.4th 1429
DISCIPLINARY ACTION FOR CHILD
            ABUSE
Persistent Violation of Rules…

  Example: A teacher engages in repetitive
  conduct such as excessive absenteeism, repeated
  failures to attend meetings, or use of foul
  language even after the Principal has followed
  the steps of progressive discipline.
DISCIPLINARY ACTION FOR CHILD
            ABUSE
 Evidence Unfitness for Service and Persistent
Violations of Rules requires documentation of
incidents including:


  Memos reviewing oral warnings
  Written warnings
  Written reprimands
DISCIPLINARY ACTION FOR CHILD
            ABUSE
Absent documentation identifying witnesses, dates of
events and evidence of progressive discipline the
strongest possible response:

  NOTICE OF UNPROFESSIONAL CONDUCT
DISCIPLINARY ACTION FOR CHILD
            ABUSE
Assuming the teacher addresses the issues raised, shows
remorse and never repeats the conduct the District will
have no grounds to move forward for termination.

Criminal misdemeanor charges for the same conduct
does not constitute a new charge.
         LESSONS LEARNED
Every adult in an educational setting must report to a
supervisor any conduct and/or incidents that may be
negatively affecting students when the conduct
involves physical, verbal or other emotional abuse.
If the supervisor is the person guilty of the misconduct
the District expects a report to be made to that
person’s supervisor.
Seemingly small issues sometimes mushroom into
bigger problems.
         LESSONS LEARNED
Even if the conduct doesn’t fit the definition of child
abuse there is still a reason to advise supervisors that
there are problems occurring in a classroom.
To the extent criminal charges arise out of an incident
that has already been documented as employee
misconduct Districts and District Attorneys need to
coordinate. Example: Plea agreements could include
a resignation from teaching and/or relinquishing a
teaching credential.
  LONG RANGE SOLUTIONS
Seek new laws prohibiting school district employment
based on crimes not already covered.

See reform of the tenure laws. District’s should not
have to participate in a dismissal system that costs
hundreds of thousands of dollars and leaves children
at risk of emotional or physical harm or simply being
in an environment where learning is not taking place.
 CONCLUSION

QUESTIONS AND ANSWERS

								
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